TMI Blog2019 (10) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... on supplementary invoices, bills challans and therefore, the provisions of Rule 9(1)(bb) is not applicable. Thus, in case of payment of service tax under reverse charge mechanism, Rule 9(1)(bb) will not apply - appeal allowed - decided in favor of appellant. - Excise Appeal No. 12209 of 2018 - FINAL ORDER NO. A/11904 / 2019 - Dated:- 10-10-2019 - HON BLE MR. RAMESH NAIR, MEMBER ( JUDICIAL ) Shri SJ Vyas, Advocate for the Appellant Shri S. N. Gohil, Superintendent (AR) for the Respondent ORDER RAMESH NAIR The issue involved is as to whether the appellant is correct in taking Cenvat credit on the input service on which service tax was paid by the appellant under reverse charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointing out by the auditors subsequently, but under reverse charge mechanism on receipt of services namely, security agency service and man power recruitment service. They have availed Cenvat credit on the basis of bank challans as proof of payment of service tax. The provisions of taking credit on such challans, is provided under Rule 9(e) of Cenvat Credit Rules, 2004. In the present case, credit was not taken on supplementary invoices, bills challans and therefore, the provisions of Rule 9(1)(bb) is not applicable. The very same issue has been considered by the Tribunal in the case of Nissan Motor India Pvt. Limited (supra) and held as under:- 10. In Appeal E/42153/2014 the dispute relates to denial of cenvat credit invoking R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge basis. This being so, such payment will only within the ambit of Rule 9(e) ibid and not Rule 9 (bb) of the CCR 2004. We also find that the decision relied upon in Essar Oil Ltd. Vs CCE Rajkot - 2014 (303) ELT 255 (Tri.-Ahmd.) is applicable on all fours to the issue at hand. The relevant portion of the said decision is reproduced as under : 5.3 From the above prescription, it is evident that for the preparation of an invoice, there has to be a buyer to whom goods are sold. Further, Rule 11(7) of the Central Excise Rules, 2002 prescribe the following : Goods to be Rule 11. removed on invoice. The provisions of this rule (7) shall apply mutatis mutandis to goods supplied by a first stage dealer or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so the credit is admissible on the basis of such a sale invoice. A similar situation will exist for supplementary invoice issued by a first stage dealer/second stage dealer under Rule 9(1)(b) of Cenvat Credit Rules, 2004. The word Challan‟ and any other similar document‟ evidencing payment of additional CVD, mentioned in Explanation to Rule 9(1)(B), will thus mean these situations where duty is paid under a challan‟ by an importer/dealer of imported goods who has sold the cenvatable goods. This provision relating to issue of supplementary invoice will not be applicable to the goods imported by the appellant which are not sold. This interpretation has been upheld by Karnataka High Court in the case of Karnataka Soaps D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) it is held that documents specified in Rule 7 (present Rule 9 of Cenvat Credit Rules, 2004) of the earlier Cenvat Credit Rules is only illustrative in nature and cannot bar taking of Cenvat credit under Rule 3 of Cenvat Credit Rules. When additional duty is paid under reassessment or on being pointed out by the Revenue then the credit of such duty paid will be admissible as Cenvat credit to the appellant under Rule 9(1)(c) of the Cenvat Credit Rules, 2004. In view of the above settled position of law, the credit was rightly availed by the appellant and accordingly the appeal filed by the appellant is required to be allowed. Once on merits the issue is decided in favour of the appellant, there is no question of imposing penalty and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de payment of Service Tax. In the facts of the present case the appellant have paid the Service Tax along with 15% penalty and interest in terms of Section 73 (4A) it reads as under: In case where ingredients of fraud, collusion etc., as per section 73(4) exists, then the assessee can pay the service tax along with interest and penalty equal to 1 percent of the tax for each month for the period which default continues, up to maximum of 25 percent . In case, the assessee have paid service tax, interest and penalty under section 73(4A) and if the assessee recover service tax amount from the service receiver by raising supplementary invoice, then the service receiver is not eligible to avail the cenvat credit of the same as per Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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